criminal decision 2024 12 23 15 56 32

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA DC. CRIMINAL APPEAL NO. 000016738 OF 2024 BARAKA MICHAEL .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS DIRECTOR OF PUBLIC PROSECUTIONS .............................. RESPONDENT / DEFENDANT JUDGMENT RWIZILE, J This appeal arises from Criminal Case No. 145 of 2023 from the District Court of Kigoma. The appellant was accused, tried and convicted of rape contrary to section 130 (1)(2)(a) and 131(1) of the Penal Code [Cap 16 R.E. 2022]. He was thereafter sentenced to 30 years imprisonment. Facts giving rise to this case were stated that; The victim, who in terms of the charge sheet, is an elderly woman of 66 years, does business of selling locally made brooms. It was alleged that on 24th October 2023, at Rutale area in Kigoma district, the victim was collecting materials for making brooms in the palm tree farm. Suddenly, the appellant appeared, held her forcefully, slit apart her under garments and raped her. The victim raised an alarm, but when the rescue mission appeared, she was already raped. After raping her, the appellant is alleged to have run away but was arrested few minutes thereafter. After investigation, he was arraigned, the charges which he denied. The prosecution, in the effort to prove its case, called 6 witnesses, who in the view of the trial court, proved the charge leading to conviction and sentence. Dissenting, he has filed this appeal with following grounds of appeal. 1. That, the district court erred in law and fact by convicting the appellant while the offence charged was not proved to the standard required to wit beyond reasonable doubt. 2. That, the District court grossly erred in law in relying on the evidence of the arresting and investigation officer who also took caution statement of the appellant (exhibit P2). 3. That, the learned trial magistrate erred in both law and facts by not considering appellant’s evidence there is hostility between the victim and the appellant as they are alleging that the appellant is a witch. 4. That, district court erred in law in recording the evidence of the appellant without informing him of his right that he was entitled to have his evidence read over to him. At the hearing, the appellant appeared in person and had no argument to advance. The Republic was under the service of Ms. Reheme Mpozemenya, learned state attorney who contested the appeal and submitted first. The 1st Page. 1 Hon. AUGUSTINE RWIZILE ,2nd and 3rd grounds were jointly argued that the case was proved beyond reasonable doubt. It was not disputed that the victim was raped. The learned attorney said, the victim was caught, dragged into the bush, undressed and raped. She added, Pw3 who was few paces from the crime scene, saw the appellant rape her. It was following an alarm for help she had raised and that the appellant threatened to stub Pw3 by using a knife. She further said, Pw4 was called for help and then the appellant was arrested. According to the learned attorney, Pw5 proved, she was penetrated. The appellant, she further argued, admitted the offence in terms of exhibit P2, the caution statement. Ms. Reheme held the view that, failure to comply with section 210 of CPA, as alleged by the appellant is cured by section 388 of CPA, since the appellant was not prejudiced, as held in Stanley Murithi Mwaura vs Republic, Criminal Appeal No 144 of 2019. She held the view that, failure to comply with such a legal requirement, did not occasion failure of justice since the appellant did not prove there was failure of justice. The court was asked to have this appeal dismissed. In a form of a rejoinder, although the appellant did not submit in chief, he argued that he was detained for 2 weeks before knowing his offence. He was taken to Mwandiga Primary court where the same case was dismissed and re- arrested henceforth charged at the district court for the same offence. He further criticized the evidence of Pw3 which according to him, are lies. Lastly, he argued, the case was formulated against him, because he owed the victim a sum of TZS 4 million. According to the appellant, it is therefore her plan that he has to be jailed. In his view, this appeal be allowed. After hearing arguments for and against this appeal, I will start determining the 2nd ground of appeal. As intimated in my introductory notes. The appellant did not advance material argument in respect of the grounds raised. Conventional wisdom dictates that this court has to go through the record of appeal and determine, if there was compliance of the law. Happily, since this is the first appellate court, I will have an opportunity to re-evaluate the evidence. The record has it that, Pw6 a police officer investigated the case, recorded the caution statement (exhibit P2) and visited the crime scene on the aid of the appellant, and therefore prepared a rough sketch of the crime scene, exhibit P3. It is from this background information, that the appellant complains that it was against the law, for the trial court to rely on his evidence. I do not think, the appellant is right. First, the trial court did not rely on the evidence of Pw6 alone to ground conviction. His evidence was among other collection of evidence, which in the view of the trial court, the case was proved. But second, it is not against the law for the person investigating the crime to record a caution statement of the victim in terms of section 58(4) of the CPA, which explicitly provides that a police officer investigating an offence for the purpose of ascertaining whether the person under restraint has committed an offence may record a statement of that person. It is not therefore illegal and perhaps, Pw6 acted under this provision of the law. There is no law therefore, and the appellant has not cited any that prevents the investigator to record the caution statement. In actual fact, the law is permissive. I find no merit in this ground of appeal. Page. 2 Hon. AUGUSTINE RWIZILE The third ground of appeal has no merit as well. The appellant stated that the evidence of the victim, Pw1 should not be believed because it is actuated by previous grudges, since she owes him, the sum of TZS 4 million and so she wants him jailed. It is sad, the appellant has raised this point on appeal. Actually, the trial court could not consider a defence not brought to its attention. In his evidence before the trial court, the appellant narrated all incidences of his arrest, the way he was beaten on allegation that he is a witch. He did not even say, he was kept under kreb by the police for many days as he submitted before this court. It is therefore clear to me that, this defence is an afterthought. It has no bearing in law. His argument in this ground is therefore baseless. On the 4th ground of appeal, the appellant was not happy with failure of the trial court to comply with section 210 of the CPA when he was making his defence. The appellant is right, and the learned state attorney agreed with him. Throughout the proceedings, it can be gathered, the trial magistrate did not comply with section 210(3) of the CPA. The section enjoins the magistrate to inform each witness that he is entitled to have evidence read over to him, and if a witness asks that his evidence be read over to him, the magistrate shall record any comments which the witness may make concerning his evidence. As it looks, the words of the law are coached in mandatory terms and this means, under section 53(2) of the Interpretation of Laws Act, the trial court, must, willy-nilly, comply with the same. Indeed, the trial court, did not only, fail to observe that right to the appellant only, but also to all other witnesses. The appellant was not therefore informed of the right of his evidence to be read over to him after it was recorded. As important as it is, the provision, cannot be ignored. Faced with the similar instance, the Court of Appeal in the case of The Director of Public Prosecutions v. Hans Aingaya Macha, Criminal Appeal No. 449 of 2016 (unreported), observed that, the requirement to comply with the section was intended to ensure that every testimony is properly recorded, which guarantees against distortion, perversion and suppression of evidence. Apparently, neither the appellant nor the respondent who complained that failure of the trial court to observe the provision occasioned failure of justice. Categorically, for evidence to be negatively acted upon on appeal, due to nonobservance of the provision, it must be aired and shown with clarity that nonobservance caused miscarriage of justice. It was pointed out in Flano Alphonce Masalu @ Singu and 4 Others vs The Republic, (CAT), Criminal Appeal No. 366 of 2018, on page 13, the Court of Appeal, when faced with a similar instance; “…we emphasized that in every procedural irregularity the crucial question is whether it has occasioned a miscarriage of justice…” Based on the argument advanced by the appellant, I hold, there is no failure of justice on part of the evidence of the prosecution. Turning to the evidence of the appellant, which is his main dispute. The same test must be applied. I have gone through his evidence, and it is clear to me that, the trial court did not convict based on the weakness of his evidence. Further, he did not complain that the evidence he aired before the trial court was doctored or rather mis-captured. The appellant has not brought to question the authenticity of the proceedings. This court held in Richard Mebolokini v, R [2000] TLR 90, that when the authenticity of the record is in issue, non-compliance with section 210 may prove fatal. This is the current position of the law, since the Court of Appeal approved the same in the case of Flano Alphonce Masalu @ Singu and 4 Others vs The Republic on page 13; Page. 3 Hon. AUGUSTINE RWIZILE "In Richard Mebolokini v R, [2000] TLR 90, Rutakangwa, J. (as he then was) was faced with a similar complaint. The learned judge observed that when the authenticity of the record is in issue, non-compliance with section 210 may prove fatal. We respectfully agree with that observation. But in the present case the authenticity of the record is not in issue, at least, the appellant has not so complained. In the circumstances of this case, we think that non- compliance with section 210 (3) of the CPA is curable under section 388 of the CPA. " The nature and wording of the 4th ground of appeal, clearly does not impeach the authenticity of his evidence. Observable, there is no miscarriage of justice, and the appellant did not demonstrate any. It follows that the third ground of appeal has no merit. Lastly, it is the 1st ground of appeal. The prosecution is cast with the onus of proving the case beyond reasonable doubt. The appellant was accused of rape. As the victim is an adult, among key elements, is penetration, with no consent. The prosecution before the trial court tendered witnesses. The victim’s evidence was supported by Pw5, a medical doctor. Pw5 also tendered a PF3, exhibit P1, showing there were signs of penetration. I have no doubt, penetration in an adult may not be apparent based on how often sexual intercourse has been practiced before the rape incident. The victim said was penetrated without consent. It is trite that, the best evidence in rape is that of the victim in terms of section 127(6) of the Evidence Act. It is so in the sense that, such evidence may be used to convict, even if it is not corroborated by some other independent evidence. The only observation the court has to make, is to find out, if the witness is telling nothing but the truth, see also the case of Fahadi Khalifa vs The Republic, (CAT), Criminal Appeal No. 573 of 2020, on page 11, where it was so observed. The victim said, it is the appellant who raped her. Pw3 said, he saw the appellant on top of her having sex. Pw3, said was close by, like 12 paces. It was not at night to invite evidence of mistaken identity. The appellant said was arrested because people complained that he was bewitching them. Before this court, the appellant, raised a different defence on grudges between him and the victim. He was arrested soon after the commission of the offence. His submission, with respect, is lie and corroborates the prosecution case. At the police station, the appellant admitted having raped the victim. His caution statement was admitted by the trial court as exhibit P2. He did not object its admission. In the other words, the reasonable hypothesis is that he admitted its contents as held in Anna Moises Chissano vs The Republic, (CAT), Criminal Appeal No. 273 of 2019 at pages 23-24, it was stated: “...once certain evidence goes into the record unchallenged it is, in law, taken to have been admitted by the accused...” Even if it is assumed that the caution statement was recorded, tendered and admitted against the law, still, other evidence on record, sufficiently, proved the case. Based on the above observations, I find no merit in this ground of appeal as well, and so, the appeal fails. It is dismissed in its entirety. Dated at KIGOMA this 30th of October 2024 . Page. 4 Hon. AUGUSTINE RWIZILE A. K RWIZILE JUDGE OF THE HIGH COURT Page. 5 Hon. AUGUSTINE RWIZILE